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Child Justice Act, 2008 (Act No. 75 of 2008)

Notices

Directives issued in terms of Section 97(4) of the Child Justice Act, 2008 (Act 75 of 2008)

Children in Conflict with the Law

F. Basic principles relating to diversion

 

F. Basic principles relating to diversion

 

1. The general requirements for diversion in terms of the Act are contained in section 52(1) of the Act. The said requirements are:
(a) the child acknowledges responsibility for the offence;
(b) the child has not been unduly influenced to acknowledge responsibility;
(c) there is prima facie evidence that the child committed the offence;
(d) the child and, if available, his or her parent, an appropriate person or a guardian, consent to diversion; and
(e) the prosecutor indicates that the matter may be diverted in accordance with subsection (2) or the Director of Public Prosecutions indicates that the matter may be diverted in accordance with subsection (3).

 

2. The diversion must be made an order of court.

 

3. Prosecutors are responsible for the ultimate decision whether to divert or not and should not abdicate this responsibility. They also have a duty to ensure that adequate conditions of diversion, commensurate with the crime committed, are imposed and should discuss appropriate and available options with the relevant probation officer (Sections 52 to 55 of the Act). With regard to Schedule 3 offences directives are provided for in paragraph J below.)

 

4. Prosecutors are not required by the Act to provide reasons for a decision not to divert. The furnishing of reasons might compromise the presiding officer in any further proceedings and prosecutors should therefore be careful if reasons are nevertheless provided. Prosecutors should, however, record reasons for non diversion in the investigation diary of the docket.

 

5. The Act requires diversion programmes and diversion service providers to apply for accreditation and be accredited. Compliance must always be monitored by a probation officer or a suitable person and this person must be identified in the diversion order (section 57).

 

6. If a Family Group Conference or Victim Offender Mediation is considered, the victim must also consent thereto (section 61 and 62):
(a) For purposes of informed consent, prosecutors should ensure that the victim is provided with sufficient information regarding the nature of such interventions and the right to refuse to participate.
(b) Where the victim is a child, particular care must be taken and the consent of a parent, guardian or an appropriate person should, in addition, be insisted upon as necessary.
(c) These will seldom be suitable interventions in the case of a contact crime.
(d) Unless pressing circumstances so require, for instance where the prosecutor is concerned about the victim or the latter so requests for good reason, it is not expected of prosecutors to attend the conference.

 

7. All efforts must be made to establish whether the child has previously been diverted. A diversion may still be considered despite a previous diversion or the existence of a previous conviction if the child will benefit from the proposed programmes and if the child, all circumstances taken into account, should be afforded another such opportunity. Diversion is not suitable if it brings the administration of justice into disrepute. If unsure whether a certain decision will bring the administration of justice in disrepute or not, prosecutors should require the guidance of the DPP.

 

8. The views of victims and investigating officers must be considered in respect of Schedule 2 and 3 offences. Whenever possible, such views should also be obtained and considered in respect of Schedule 1 offences. Although prosecutors are not bound by these views, it should be kept in mind that the victim/person affected has no redress by way of a private prosecution once a diversion has been ordered (section 59 (2)).

 

9. When a child has successfully complied with a diversion order a compliance report must be furnished to the prosecutor (section 57(5)). A copy of this report should be given to the clerk of the court and a copy filed in the docket.

 

10. In the event of non-compliance due to the child’s fault, section 58(4) applies. The degree of non-compliance and the recommendation by the probation officer should inform the decision whether to proceed with prosecution or to impose more onerous diversion options. The latter must also be made an order of court.

 

11. Although a successful diversion does not constitute a previous conviction, no prosecution may be instituted following a successful diversion (section 59(1)).